Bar career acting for the government in migration cases … Multiple recusal applications … Googling from the box … Novel approaches … Ducking the High Court’s Bromwich decision 

Much to the angst of Mr Dutton and his indentured claqueurs at News Corp, AZC20, aka Ned Kelly Emeralds, is out of immigration detention and wandering the streets until curfew time with an electronic bracelet around his ankle. 

Mr Emeralds is a mute Iranian who arrived by boat and has been held in detention for over 10 years, during unproductive attempts to send him elsewhere.  

His case has had numerous convoluted rounds in the courts, including the High Court. One Federal Court hearing in October concerned an application for Justice Geoffrey (not Jeff) Kennett to recuse him for apprehended bias. 

At the bar Kennett frequently represented the Commonwealth in migration bases. Sally Davis, one of the government lawyers in AZC20 had also given evidence in three other cases where Kennett appeared as senior counsel for the Commonwealth. 

The application seemed to rest on the idea that while the judge’s prior association with the Commonwealth is not sufficient for a reasonable apprehension of bias, it may “give colour” to other facts and render the issue “more acute”.

Kennett had no trouble dismissing the recusal application, but before he did so he pointed to an unusual development. 

When Sally Davis was being cross-examined she gave evidence by video link from her government office. 

She has trouble with the wording of a question and she used her mobile phone to Google the meaning of the term used. 

“This was clearly irregular,” said Kennett J. 

It was intimated that because the judge didn’t made a direction in relation to the witness’s use of her phone during cross-examination that he might have trouble bringing an open mind to the case.

It also emerged that during cross-examination Davis was exchanging text messages with a senior legal officer at Home Affairs, Paul Wyllie – asking him about the content of her replies while in the box.

“This clearly should not have happened, at least without notice to the Court and the applicant’s legal team. It is another problematic aspect of Ms Davis’s oral evidence, which is likely to affect the assessment of her credibility if her evidence is controversial.”  

Just over a month later the case was again before Kennett in the Federal Court. By then the High Court had made the earth move with NZYQ – and there was no more mucking around. 

Ned was on his way out of detention in Perth, waving his writ of habeas corpus. 

There had been an earlier round of applications for Kennett to recuse himself in another migration case.  

Vili Masi-Haini is a New Zealand citizen who has lived most of his life in Australian. He was given a black mark by the minister following an armed robbery and assault. 

His character and his visa were both cancelled and then there was a full court appeal from orders dismissing a judicial review of the minister’s decision. The appeal bench comprised Brigitte Markovic, Fiona Meagher and Geoffrey Kennett. 

On the first round Masi-Haini sought the recusal of Kennett on the ground that he appeared for the government in a 2021 High Court case, Viane, where a similar issue arose relating to whether the administrative decision maker’s factual findings held water. 

His junior in Viane was Rachel Francois, who was also appearing in Masi-Haini where a similar issue that arose in the High Court case potentially arises again. 

On May 8, 2023, Kennett decided that there was no apprehended bias and determined he would stay on for the appeal.

A few days later, while Markovic, Meagher and Kennett were reserved in Masi-Haini, the High Court on May 17 came down with its decision in QYFM – the case where it was held that Justice Robert Bromwich should have recused himself from a hearing on grounds of apprehended bias, because he appeared for the DPP in a case where he opposed an appeal by QYFM against a drug importation conviction. 

Masi-Haini was now back again, pressing for Kennett’s recusal should the full court be inclined to dismiss his appeal, in which case they should relist the hearing before fresh judges. 

Kennett explained: 

“In addressing this issue in written submissions, Ms Francois has (understandably) borrowed from the written submissions of the Minister in Viane. 

Two paragraphs of the Minister’s written submissions in this appeal are almost identical to paragraphs of the submissions filed in Viane. 

As articulated in the appellant’s submissions, the concern arises from the content of the submissions made in Viane and not from my former professional relationship with Ms Francois.” 

The full court managed to dance around around the High Court’s thinking about the Bromwich matter, engaging the “double might” escape hatch: 

“The criterion is whether a ‘fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’.” 

This shows the criterion for recusal is concerned with “possibility” not “probability”. 

Kennett was home, again. 

Masi-Haini v Minister for Rejections and Expulsions